THIRD DIVISION

[ A.C. No. 13789 (Formerly CBD Case No. 19-6041). November 29, 2023 ]

FADI HASAN MAHMOUD SHUMALI, COMPLAINANT, VS. ATTY. JAMES BRYAN O.

AGUSTIN,* RESPONDENT.

DECISION

INTING, J.:

The Court resolves the administrative complaint1 filed by Fadi Hasan Mahmoud Shumali
(complainant) against Atty. James Bryan O. Agustin (respondent) before the Integrated Bar of the
Philippines (IBP) for withholding his passport in violation of Rule 16.03, Canon 16 of the Code of
Professional Responsibility (CPR) which states that "[a] lawyer shall deliver the funds and property
of his client when due or upon demand."

The Antecedents

Complainant, a citizen of the Kingdom of Jordan, is the holder of Jordanian Passport No.
N1852202 issued on March 22, 2015, and valid until March 21, 2020 (passport). On the other hand,
respondent is the counsel of Al Batra Recruitment Agency (Agency).3

Complainant alleged that he turned over his passport to respondent in May 2018 for the renewal
of his Philippine tourist visa; however, the latter was unable to facilitate the processing of the
application as the Agency had no available funds at the time. Complainant thereafter made several
demands for the return of his passport, but respondent refused to do so because the Agency
supposedly had outstanding payables with the latter's law office.4

In his Answer,5 respondent clarified that complainant turned over his passport for purposes of
processing his Alien Employment Permit (AEP) with the Department of Labor and Employment and
the extension of his expired tourist visa for another three months.6 He explained that complainant's
applications for tourist visa extension and AEP were never processed because first, complainant
never furnished him the needed information and documentary requirements,
and second, complainant and the Agency did not pay respondent a single centavo for the
purposes.7

Respondent averred that he simply exercised his right to an attorney's lien and informed
complainant via email8 dated January 17, 2019, that his passport was being retained for failure of
the Agency to pay his legal fees as follows: PHP15,000.009 for the processing of complainant's
AEP, tourist visa, and working visa; and PHP435,110.0010 for other legal fees that accrued since
2017.11

Subsequently, respondent agreed to meet the owner of the Agency, complainant's uncle
Mohammed M. Al Shomali (Al Shomali), on May 3, 2019, in order to return complainant's passport
and discuss the Agency's pending cases. However, the meeting was rescheduled because Al
Shomali got sick. Then, on June 10, 2019, respondent attempted to return the passport to
complainant, but the latter refused to sign the acknowledgement receipt. Thus, respondent instead
delivered the passport to the Jordanian Honorary Consulate General and informed complainant that
he may claim his passport there.12
 The IBP's Report and Recommendation

In an undated Resolution and Recommendation,13 Investigating Commissioner Francis B.

Beltran (Investigating Commissioner) found that respondent was not justified in exercising his right of
lien over complainant's passport and recommended that he should be reprimanded therefor, viz.:14

[]While lawyers do have the right to retain a property or belongings of his client when exercising
his/her right of lien over unpaid legal services, this right though must be exercised with prudence and
with sense of fairness, in the sense that, it must not be used as a tool to cause difficult situations to
the client to bring him/her down to his knees. The passport of Mr. Shumali is a very important
document to him being an alien of this country, to hold the same as hostage for a collection
undertaking would be too harsh as a remedy. Atty. [] Agustin could have selected a different action
and for sure there were other options available, such as instituting a collection case in the court of
law. Whether or not untoward or damaging incidents actually happened when Mr. Shumali was
roaming around the metropolis without a valid passport is immaterial, what is pivotal here is Atty. []
Agustin could have thought about his action in a sense that it will make Mr. Shumali vulnerable to
different unfavorable situations without a passport in his possession and as a matter of fact, Atty. []
Agustin knew the importance of this because he gave an advise to both Mr. Shomali and Shumali
that the latter cannot be working in the Philippines without the valid passport and or visa as per our
POEA rules. Furthermore, when Atty. [] Agustin readily admitted that he extended an apology to Mr.
Shumali, it could only mean that he knew that he could have abused and or misused this principle of
lawyer's right of lien. x x x.
1aшphi1

xxxx

[]Therefore, the undersigned most respectfully recommends that Atty. [] Agustin be merely
reprimanded for his misuse of the principle of Attorney's lien.15

On November 12, 2022, the IBP Board of Governors passed Resolution No. CBD-XXV-2022-11-
20,16 which adopted and approved the Investigating Commissioner's recommendation to impose
upon respondent the penalty of a reprimand, to wit:

RESOLVED, to APPROVE and ADOPT, as it is hereby APPROVED and

ADOPTED, the Report and Recommendation of the Investigating Commissioner to
impose upon Respondent Atty. James Bryan O. San Agustin the penalty of
REPRIMAND.17 (Emphasis and italics omitted)

The Issue

The issue for the Court's resolution is whether respondent should be held administratively liable
for withholding complainant's passport in the exercise of his attorney's lien.

The Court's Ruling

The Court adopts the findings of the IBP but with modifications as to the designation of the
offense and the penalty to be imposed upon respondent.

Section 45, Canon III of A.M. No. 22-09-01-SC, or the Code of Professional Responsibility and
Accountability (CPRA),18 which repealed the CPR, provides that "[a] lawyer is entitled to prompt
payment from the client of attorney's fees." In relation thereto, Section 56, Canon III of the same
Code provides that lawyers shall have a retaining lien on the funds, documents, and papers of the
client/s that have lawfully come into his/her possession and that he/she may retain the same until
his/her legal fees have been paid, viz.:

SECTION 56. Accounting and Turn Over upon Termination of Engagement. — A lawyer who is
discharged from or terminates the engagement shall, subject to an attorney's lien, immediately
render a full account of and turn over all documents, evidence, funds, and properties belonging to
the client.

The lawyer shall cooperate with the chosen successor in the orderly transfer of the legal matter,
including all information necessary for the efficient handling of the client's representation.

A lawyer shall have a lien upon the funds, documents, and papers of the client which have
lawfully come into his or her possession and may retain the same until the fair and reasonable fees
and disbursements have been paid, and may apply such fund to the satisfaction thereof. (Italics
supplied)

Jurisprudence dictates that save for one's retaining lien, lawyers generally should not withhold
the client's funds and/or documents.19 For a proper exercise of one's retaining lien, the lawyer must
establish the following elements: "(1) lawyer-client relationship; (2) lawful possession of the client's
funds, documents and papers; and (3) unsatisfied claim for attorney's fees."20

After a careful review, the Court finds respondent's exercise of his retaining lien by withholding
the return of complainant's passport to be improper in the case.

It appears that respondent's client is not actually the complainant but the Agency itself,
considering that it was Al Shomali, the Agency's owner, that endorsed the subject tasks to him in the
first place. In addition, respondent himself stated that he scheduled a meeting with Al Shomali, not
complainant, for the return of the latter's passport.

Pertinently, under Philippine law, the holder of a Philippine passport is a mere

possessor thereof, the Government of the Philippines, being its lawful owner at all times; thus, a
Philippine passport may not be surrendered to any person or entity other than the government or its
representative.21 Applying the International Law doctrine of processual presumption, which means
that if a foreign law is not pleaded/proved, it is presumed to be the same as the laws of the
Philippines,22 it necessarily follows that the passport withheld by respondent belongs to the
Kingdom of Jordan and that complainant is a mere possessor thereof.

In other words, even though respondent may have come into the possession of complainant's
Jordanian Passport for valid purposes, i.e., the processing of AEP and visa applications, such travel
document cannot be deemed as a proper subject of an attorney's retaining lien because it neither
belongs to complainant nor the Agency. To stress, it is highly inappropriate for respondent to have
refused to return complainant's passport in order to satisfy the legal fees that the Agency owed him
or his law firm in the amount of PHP435,110.00.

On this point, it is likewise interesting to note respondent's confusing statements: first, that
complainant's AEP and visa applications were never processed due to the lack of funds for the
tasks; and second, that neither complainant nor the Agency paid his legal fees for the processing of
the applications in the amount of PHP15,000.00. Indeed, if respondent did not facilitate the
processing of the AEP and visa applications, then why is he demanding legal fees from complainant
and/or the Agency for it?
 Besides, respondent knows, or should have known, that a passport cannot be surrendered to
any person or entity other than the government or its representative.23 Worse, the unauthorized
withholding of travel documents from workers is considered a form of coercion that constitutes illegal
recruitment,24 if not trafficking in persons.25 Simply put, a lawyer cannot legally refuse to return a
client's passport for the purpose of exercising his or her retaining lien.

Respondent, having no justifiable reason to retain the subject passport, is guilty of the Less
Serious Offense of Unjustifiable Failure or Refusal to Render an Accounting of the Funds or
Properties of a Client under Section 34(n),26 Canon VI of the CPRA – which includes a lawyer's
unjustified refusal to turn over all properties belonging to the client.

Anent the penalty, Section 37(b), Canon VI provides that if the respondent is found guilty of a
less serious offense, any of the following sanctions or a combination thereof, shall be imposed: a)
suspension from the practice of law for a period within the range of one (1) month to six (6) months;
and/or b) a fine within the range of PHP35,000.00 to PHP100,000.00. Relatedly, under Section 39 of
the same Canon, "[i]f one (1) or more mitigating circumstances and no aggravating circumstances
are present, the Supreme Court may impose the penalties of suspension or fine for a period or
amount not less than half of the minimum prescribed under the CPRA."

In the case, the Court deems it proper to suspend respondent from the practice of law for a
period of only fifteen (15) days in view of the following mitigating circumstances: (a) absence of bad
faith or malice; and (b) expression of remorse, considering that he already turned over the passport
to the Jordanian Honorary Consulate General.

In closing, lawyers are reminded to avoid any controversy with a client concerning fees for legal
services and to resort to judicial action solely to prevent imposition, injustice, or fraud.27 In case of
non-payment of attorney's fees, a lawyer may resort to the proper enforcement of the attorney's lien
under Section 54, Canon III of the CPRA by filing a notice of enforcement of attorney's lien with the
court, tribunal, or other government agency of origin where the action or proceeding the lawyer
rendered service for is pending, without prejudice to other remedies under the law or the Rules of
Court.28

WHEREFORE, the Court finds respondent Atty. James Bryan O. Agustin GUILTY of the offense
of Unjustifiable Failure or Refusal to Render an Accounting of the Funds or Properties of a Client
under Section 34(n), Canon VI of the Code of Professional Responsibility and Accountability. He is
hereby SUSPENDED from the practice of law for a period of fifteen (15) days, with a stern warning
that a repetition of the same or similar acts will be dealt with more severely.
1aшphi1

The suspension from the practice of law shall take effect immediately upon Atty. James Bryan O.
Agustin's receipt of this Decision. He is DIRECTED to immediately file a Manifestation to the Court
that his suspension has started, copy furnished all courts and quasi-judicial bodies where he has
entered his appearance as counsel.

Let a copy of this Decision be furnished the Office of the Bar Confidant, the Integrated Bar of the
Philippines, and the Office of the Court Administrator for circulation to all the courts.

SO ORDERED.

Caguioa (Chairperson), Dimaampao, and Singh, JJ., concur.

Gaerlan,** J., on official leave.

Footnotes

* Erroneously referred to as "San Agustin" in some parts of the rollo.

** On official leave.

1 Rollo, pp. 2-3.

2 Id. at 5.

3 Id. at 2.

4 Id.

5 Id. at 8-21.

6 Id. at 10.

7 Id. at 10-11.

8 Id. at 59.

9 Id. at 46.

10 Id. at 49.

11 Id. at 15.

12 Id. at 8-10.

13 Id. at 122-129.

14 Id. at 127-128.

15 Id. at 126-128.

16 Id. at 120.

17 Id.

18 Took effect on May 29, 2023.

19 Rivera v. Cabalan, A.C. No. 10941 (Notice), January 25, 2016, citing Segovia-Ribaya v.
Atty. Lawson, 721 Phil. 44, 51 (2013).

20 Sps. San Pedro v. Atty. Mendoza, 749 Phil. 540, 549 (2014).
21 Section 11, Republic Act No. (RA) 8239, or the "Philippine Passport Act of 1996."

22 Kucskar v. Sekito, Jr., G.R. No. 237449, December 2, 2020, 965 SCRA 169, 178-180.

23 Section 11, RA 8239.

24 Section 6(k) of RA 8042 or the "Migrant Workers and Overseas Filipinos Act of 1995," as
Amended by RA 10022, provides:

SECTION 6. Definition. — For purposes of this Act, illegal recruitment shall mean an
act of canvassing, enlisting, contracting, transporting, utilizing, hiring, or procuring
workers and includes referring, contract services, promising or advertising for
employment abroad, whether for profit or not, when undertaken by a non-licensee or
non-holder of authority contemplated under Article 13(f) of Presidential Decree No.
442, as amended, otherwise known as the Labor Code of the
Philippines: Provided, That any such non-licensee or non-holder who, in any
manner, offers or promises for a fee employment abroad to two or more persons
shall be deemed so engaged. It shall likewise include the following acts, whether
committed by any person, whether a non-licensee, non-holder, licensee or holder of
authority:

xxxx

(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations, or for any other reasons, other than those
authorized under the Labor Code and its implementing rules and regulations[.] (Italics
supplied)

25 Section 5(f) of RA 9208 or the "Anti-Trafficking in Persons Act of 2003," as amended,

provides:

SECTION 5. Acts that Promote Trafficking in Persons. — The following acts which
promote or facilitate trafficking in persons shall be unlawful:

xxxx

(f) To confiscate, conceal, or destroy the passport, travel documents, or personal

documents or belongings of trafficked persons in furtherance of trafficking or to
prevent them from leaving the country or seeking redress from the government or
appropriate agencies[.]

26 Section 34(n), Canon VI of the CPRA provides:

SECTION 34. Less Serious Offenses. — Less serious offenses include:

xxxx

(n) Unjustifiable failure or refusal to render an accounting of the funds or properties of

a client[.]

27 Section 46, Canon III of the CPRA.

28 Section 47, Canon III of the CPRA.